Allahabad High Court
Rajneesh Kumar vs Pinaki Chandra Ghose,Chairman,Lokpal ... on 30 March, 2019
Bench: Pankaj Kumar Jaiswal, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 1 Case :- MISC. BENCH No. - 8824 of 2019 Petitioner :- Rajneesh Kumar Respondent :- Pinaki Chandra Ghose,Chairman,Lokpal & Anr. Counsel for Petitioner :- Sunil Kumar Pandey,Ashok Panday Counsel for Respondent :- A.S.G. Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Rajnish Kumar,J.
1. Heard, Sri Ashok Pandey,learned counsel for the petitioner and Sri S.B.Pandey, learned Additional Solicitor General of India is present for the opposite parties.
2. The petitioner, who claims himself to be an Advocate and scholar in the field of law, has approached this Court by means of the present writ petition and prayed for issuance of a writ of quo warranto with the following prayers:-
"(i) Issue a writ of quo warranto thereby asking Sri Pinaki Chandra Ghose, the ex member of nation Human Rights Commission (respondent no.1) as to under what authority of law he is holding the office of Chairman of Lok Pal inspite of being ineligible to be appointed for any public office as per Section 6(3) of the Protection of Human Rights Act 1993.
(ii) Issue a writ of certiorari thereby quashing the order/notification dated 19.03.2017 issued by Ministry of Personnel and Training, Government of Bharat after summoning the same from the concerned respondents through which Sri Pinaki Chandra Ghose has been appointed as the Chairman of the Lok Pal."
3. The writ petition has been filed on the ground that the Chairman of the Lokpal, who has been appointed by means of the notification dated 19.03.2019 and administered oath by the President of India on 23.03.2019, was working as member of National Human Rights Commission, when his name was considered for the said post. He was ineligible to be considered and appointed on the said post as provided under Section 6(3) of the Protection of Human Rights Act, 1993(hereinafter referred as the Act, 1993) and, therefore, his appointment as Chairman of the Lokpal is in express violation of the law.
4. Submission of learned counsel for the petitioner is that the respondent no. 1 could not have been appointed as Chairman of the Lokpal in view of the express bar in Section 6(3) of the Act, 1993 which provides that on ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of India or under the Government of any State.
5. Section 6(3) of the Act 1993, on reproduction reads as under:-
3. On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of India or under the Government of any State.
6. The Chairperson of the Lokpal is appointed under the Lokpal and Lokayuktas Act, 2013 (hereinafter referred as the Act, 2013). Section 2(i) provides that 'Lokpal' means the body established under Section 3. Section 2(b) of the Act, 1993 provides that 'Chairperson' means Chairperson of the Lokpal.
7. Section 4 provides the mode of appointment of Chairperson and other members. Section 4 of the Act 2013 is extracted as under:-
"4. Appointment of Chairperson and Members on recommendations of Selection Committee.--(1) The Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of--
(a) the Prime Minister--Chairperson;
(b) the Speaker of the House of the People--Member;
(c) the Leader of Opposition in the House of the People--Member; 7
(d) the Chief Justice of India or a Judge of the Supreme Court nominated by him--Member;
(e) one eminent jurist, as recommended by the Chairperson and Members referred to in clauses (a) to (d) above, to be nominated by the President--Member.
(2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee.
(3) The Selection Committee shall for the purposes of selecting the Chairperson and Members of the Lokpal and for preparing a panel of persons to be considered for appointment as such, constitute a Search Committee consisting of at least seven persons of standing and having special knowledge and expertise in the matters relating to anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law and management or in any other matter which, in the opinion of the Selection Committee, may be useful in making the selection of the Chairperson and Members of the Lokpal: Provided that not less than fifty per cent. of the members of the Search Committee shall be from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women: Provided further that the Selection Committee may also consider any person other than the persons recommended by the Search Committee.
(4) The Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chairperson and Members of the Lokpal.
(5) The term of the Search Committee referred to in sub-section (3), the fees and allowances payable to its members and the manner of selection of panel of names shall be such as may be prescribed."
8. In view of above, the Chairperson of Lokpal is appointed on the recommendation of a Selection committee consisting of Prime Minister, Speaker of the House of People, Leader of opposition in the House of People, Chief Justice of India or a Judge of the Supreme Court nominated by him and an eminent jurist to be nominated by the Chairperson and members referred to in Clauses (a) to (d).
9. Sub Section (3) of Section 4 of the Act, 2013 provides that the selection committee shall for the purposes of selecting the Chairperson and members of the Lokpal and for preparing a panel of persons to be considered for appointment as such, constitute a Search Committee consisting of at least seven persons of standing and having special knowledge and expertise in the matters relating to anti corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law and management or in any other matter which, in the opinion of the selection committee, may be useful in making the selection of the Chairperson and Members of the Lokpal. However, the Selection Committee may also consider any persons other than the persons recommended by the Search Committee as per the proviso. Sub-section 4 of section 4 provides that the Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chairperson and members of the Lokpal.
10. Section 6 of the Act,2013 provides that Chairperson and every Member shall,on the recommendations of the Selection committee, be appointed by the President by warrant under his hand and seal and hold office as such for a term of five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier.
11. Section 7 provides that salary, allowances and other conditions of service of the Chairperson shall be the same as those of the Chief Justice of India.
12. In view of the aforesaid provisions, it is apparent that the Chairperson is appointed in accordance with the procedure prescribed under the Lokpal and Lokayuktas Act, 2013. His selection is made on the recommendation of a high powered Selection committee which includes the Chief Justice of India or his nominee also by regulating its own procedure in a transparent manner. Therefore the Cabinet or Government has no role in selection or appointment of the Chairperson.
13. The jurisdiction of Lokpal in respect of enquiry is provided in Section 14 of the Act, 2013, under which the Lokpal is empowered to inquire or cause an inquiry to be conducted into any matter involved in, or arising from, or connected with, any allegation of corruption against public officials including the Prime Minister, Ministers and Members of Parliament and prosecuting them in a time bound manner.
14. The procedure in respect of preliminary enquiry and investigation has been provided in Chapter VII of the Act 2013. Section 22 of the Act 2013 provides that the Lokpal may require any public servant or any other person to furnish information etc. as required by him for the purpose of preliminary enquiry or investigation. It also exercises the power to grant sanction for initiating prosecution. The Lokpal exercises wide powers as provided under Chapter VIII. He also exercises the supervisory powers as provided under Section 25 of the Chapter VIII.
15. The Chairperson of the Lokpal is the creature of the Statute and performs his duties in accordance with the provisions of the Statute without any interference or hindrance by the Government.He exercises wide powers as provided under Chapter VIII of the Act 2013. Therefore it cannot be said to be an employment under the Government, as the Government has not even supervision or control over him as per the Act. He is not a subordinate or subservient to the government of India. He is neither amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he discharges his functions as per the Act.
16. On the other hand, he is empowered to enquire or cause inquire or cause an inquiry to be conducted into any matter involved in, or arising from, or connected with, any allegation of corruption made in a complaint even against the Prime Minister, Ministers and Members of Parliament. He is not appointed by the Government. The Government has nothing to do with his appointment. The President appoints him not on the advice of the Cabinet as in the case of the government appointments but on the recommendation of a Special Selection Committee provided under the Act which cannot be said to be a recommendation of the Government.
17. In view of above, the Chairperson of Lokpal who has been appointed on the recommendation of a Selection Committee provided under the Act by the President of India by a warrant of appointment on the recommendation of a special Selection Committee and empowered to make enquiry even against the Prime Minister, Ministers and Members of Parliament cannot be said to be an employment under the Government of India only because he has been appointed by the President of India and paid salary from the Government exchequer.
18. Our aforesaid view is fortified by the judgment of a constitution bench of the Hon'ble Apex court in the case of Hargovind pant versus Raghukul Tilak and others;AIR 1979 SC 1109/(1979) 3SCC 458. In the said case validity of appointment of respondent no.1 on the post of Governor was assailed on the ground that he was earlier a member of Rajasthan Public Service Commission, therefore, by reason of Article 319, clause (d) of the Constitution, ineligible for any employment either under the Government of India or under the Government of a State and since the office of Governor is an employment under the Government of India, he could not validly be appointed to that office. The Hon'ble Apex Court held that the office of Governor is not an employment under the Government of India and it does not come within the prohibition of Clause (d) of Article 319. The relevant paragraphs 6 to 8 of the said judgment, on reproduction, reads as under:-
"6.We are concerned in this special leave petition only with clause (d) of Article 319 since the 1st respondent was a member of the Rajasthan Public Service Commission and it is on account of that fact that it is claimed that he was ineligible to be appointed Governor of Rajasthan. Clause (d) of Article 319 provides: "on ceasing to hold office-a member other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State". It is, therefore, obvious that the 1st respondent could be appointed Chairman or any other member of the Union Public Service Commission or Chairman of the Rajasthan or any other State Public Service Commission, but he was ineligible for any other employment either under the Government of India or under the Government of a State. Now, it was not the case of the petitioner that the office of Governor was an employment under the Government of a State and the only question which, therefore, requires to be considered is whether the office of Governor can be said to be an employment under the Government of India. If it is, then undoubtedly the 1st respondent could not be appointed Governor of Rajasthan and his appointment would be invalid. But we are of the view that howsoever wide and expansive a meaning we may give to the words "employment . . under the Government of India", the office of Governor cannot come within it.
7.The first question that arises on the applicability of the words "employment...under the Government of India" is whether the office of Governor is an 'employment' within the meaning of that expression in clause (d) of Article 319 What is the sense in which that word has been used in this Article? Semantically, the word 'employment' is not a word with a single fixed meaning but it has many connotations. On the one side it may bear the narrow meaning of relationship of employer and employee and on the other, it may mean in its widest connotation any engagement or any work in which one is engaged. If the former be the sense in which the word 'employment' is used in clause (d) of Article 319, the office of Governor would certainly not be an employment, because the Governor of a State is not an employee or servant of anyone. He occupies a high constitutional office with important constitutional functions and duties. The executive power of the State is vested in him and every executive action of the Government is required to be expressed to be taken in his name. He constitutes an integral part of the legislature of the State though not in the fullest sense, and is also vested with the legislative power to promulgate ordinances while the Houses of the Legislature are not in session. He also exercises the sovereign power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. He is vested with the power to summon each House of the Legislature or to prorogue either House or to dissolve the legislative assembly and this power may be exercised by him from time to time. He is also entitled to address either House of the Legislature or both Houses assembled together and he may send messages to the House or Houses of the Legislature with respect to a bill then pending in the legislature or otherwise. No bill passed by the Houses of the Legislature can become law unless it is assented to by him and before assenting to the bill he may return the bill, provided it is not a money bill to the Houses of the Legislature for reconsideration. He has also the power to reserve for consideration of the President any bill which in his opinion would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is by the Constitution designed to fill. There is also one highly significant role which he has to play under the Constitution and that is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. It is the Governor's report which generally forms the basis for the President taking action under Article 319of the Constitution. It will be seen from this enumeration of the constitutional powers and functions of the Governor that he is not an employee or servant in any sense of the term. It is no doubt true that the Governor is appointed by the President which means in effect and substance the Government of India, but that is only a mode of appointment and it does not make the Governor an employee or servant of the Government of India. Every person appointed by the President is not necessarily an employee of the Government of India. So also it is not material that the Governor holds office during the pleasure of the President: it is a constitutional provision for determination of the term of office of the Governor and it does not make the Government of India an employer of the Governor. The Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties and he cannot, therefore, even by stretching the languageto a breaking point, be regarded as an employee or servant of the Government of India. If, therefore, the word 'employment' were construed to mean relationship of employer and employee, the office of Governor would certainly not be an 'employment' within the meaning of clause (d) of Article 319.
8.. But if we accept the wider meaning of the word 'employment' as connoting any engagement or any work in which one is engaged as in the expression self-employment' the office of Governor would clearly be an 'employment' within the meaning of clause (d) of Article 319.That, however, would not be enough to attract the applicability of this provision. There is a further requirement which is necessary and that is that the employment must be under the Government of India. Now, what is the meaning of this expression "under the Government of India"? Fortunately, there are two decisions of this Court which throw some light on this question. The first is the decision in Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta High Court where the question was as to whether the officers and members of the staff of the High Court could be said to be persons "serving under the Government of India or the Government of a State, in a civil capacity" so as to be within the scope of Article 320(3) (c) which requires consultation with the appropriate Public Service Commission in disciplinary matters. This Court speaking through Jagannadhadas, J., pointed out: "the phrase 'a person' serving under the Government of India or the Government of 'a State' it seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Governments functioning in the name of the President or of the Governor or of a Rajpramukh. The officers and staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chief Justice-". The question which arose in the other decision in Baldev Raj Guliani & Ors versus The Punjab & Haryana High Court & ors. was a similar one and it related to the applicability of Article 320(3)(c) to Judicial officers in the State. Here, in this case also the Court took the same view and, after referring to the earlier decision in Pradyat Kumar Bose's case with approval, held that "just as the High Court staff are not serving under the Government of the State, the Judicial officers are also not serving under the State Government", because they are "entirely under the jurisdiction of the High Court for the purpose of control and discipline". It will, therefore, be seen that the employment can be said to be under the Government of India if the holder or incumbent of the employment is under the control of the Government of India vis-a-vis such employment. Now, if one applies this test to the office of Governor, it is impossible to hold that the Governor is under the control of the Government of India. His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. His is an independent constitutional office which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State. There can, therefore, be no doubt that the office of Governor is not an employment under the Government of India and it does not come within the prohibition of clause (d) of Article 319."
19. The Hon'ble Apex Court, while dealing with the case of a Registrar and Accountant General of the High Court at Calcutta in the case of Pradyat Kumar Bose Versus The Hon'ble the Chief Justice of Calcutta High Court; AIR 1956 SC 285, observed that the phrase "persons serving under the Government of India or the Government of a State" seems to have reference to such persons in respect of whom the administrative control is vested in the respective Governments functioning in the name of the President or of the Governor or of a Rajpramukh.
20. Section 7 of the Act 2013 provides that the salary, allowances and other conditions of service of the Chairperson shall be the same as those of the Chief Justice of India. The Hon'ble Apex Court has held in paragraph 9 of the judgment rendered in the case of Har Govind Pant(supra) that many others such as the judges of the High Court and the Supreme Court are not holding employment under the Government of India, although they exercise State Power. The relevant paragraph 9 is reproduced as under:-
9.We may point out that the Governor of a State is not the only constitutional functionary whose employment is not under the Government. There are under the Constitution many other high functionaries, such as Judges of the Supreme Court and the High Courts, who do not hold any employment under the Government of India, although they exercise State power. This Court, while examining the constitutional position of a High Court Judge, pointed out in the Union of India versus S.H. Sheth & Anr.(1) that a High Court Judge is not a Government servant: there is no relationship of employee and employer subsisting between him and the Government. He is a holder of a constitutional office which has important constitutional functions and duties. One of us (Bhagwati, J.) pointed out in that case at page 463 of the Report that a High Court Judge:
"..... is as much part of the State as the executive Government. The State has in fact three organs, one exercising executive power, another exercising legislative power and the third exercising judicial power. Each is independent and supreme within its allotted sphere and it is not possible to say that one is superior to the other. The High Court, constituted of the Chief Justice and other Judges, exercising the judicial power of the State and is coordinate in position and status with the Governor aided and advised by the council of Ministers, who exercises the executive power and the Lgislative Assembly together with the Legislative Council, if any, which exercises the legislative power of the State. Plainly and unquestionably, therefore, a High Court Judge is not subordinate either to the executive or to the legislature. It would, indeed, be a constitutional heresy to so regard him. He has a constitutional function to discharge, which includes adjudication of the question whether the executive or the legislature has over-stepped the limits of its power under the Constitution. No doubt Article 217, cl. (1) provides for appointment of a person to the office of a High Court Judge by the President, which means in effect and substance the Central Government, but that is only laying down a mode, of appointment and it does not make the Central Government an employer of a High Court Judge. In fact a High Court Judge has no employer: he occupies a high constitutional office which is coordinate with the executive and the legislative."
21. In view of above, we are of the considered opinion that the Chairperson and Members of Lokpal are not an employment under the Government therefore the prohibition in Section 6(3) of the Act 1993 for employment under the Government of India or under the Government of any State is not applicable in the case in hand. The writ petition has been filed on mis-conceived and baseless grounds, which lacks merit.
22. The writ petition is accordingly dismissed.
23. No order as to costs.
Order Date :- 30.03.2019 Akanksha (Rajnish Kumar,J.) ( Pankaj Kumar Jaiswal,J.)